United States Court of Appeals
For the First Circuit
Nos. 05-1503
05-2545
JAMES NAPIER,
Plaintiff, Appellant,
v.
F/V DEESIE, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert B. Collings, U.S. Magistrate Judge]
Before
Torruella, Lynch and Lipez,
Circuit Judges.
David B. Kaplan, with whom The Kaplan/Bond Group was on brief,
for appellant.
Joseph A. Regan, with whom Syd A. Saloman and Regan & Kiely
LLP, were on brief, for appellee.
July 11, 2006
TORRUELLA, Circuit Judge. Plaintiff-appellant James
Napier ("Napier") filed a suit against defendant-appellee F/V
Deesie, Inc. ("Deesie") in the United States District Court for the
District of Massachusetts, seeking damages on three counts of
maritime law: one count pursuant to the Jones Act, 46 U.S.C. App.
§ 688; one count of unseaworthiness; and one count for maintenance
and cure. Deesie moved for summary judgment on all three claims.
The magistrate judge granted summary judgment with regard to the
Jones Act and the unseaworthiness claims but denied summary
judgment for the claim of maintenance and cure. We find that the
magistrate judge erred in granting summary judgment and remand the
case for further proceedings consistent with this opinion.
I.
In accordance with our standard of review for summary
judgment, we present the facts in the light most favorable to
Napier. See Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir.
1995). Deesie employed Napier as a crewman aboard the F/V DEESIE,
a fishing vessel. On or about April 13, 2001, the crew of the F/V
DEESIE was fishing approximately 1500 miles south to southeast of
Puerto Rico. Napier was attaching baited hooks to the line feeding
out of the vessel's stern when an accident occurred in which a
rusty, six-inch hook impaled the lower left portion of his abdomen.
Using bolt cutters and a razor, the captain and Napier cut out the
hook. Napier quickly doused the wound with peroxide, applied a
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bandage, and returned to work. The ship's first aid kit contained
aspirin, and Napier took aspirin, as well as Motrin, to treat the
pain resulting from the injury. Eight days after the accident,
Napier experienced sudden pain and loss of breath. The captain
attempted to call in an air rescue; this, however, was not possible
due to the location of the F/V DEESIE.
Upon arrival in San Juan, the captain sent Napier to a
doctor who diagnosed him with an infection and prescribed
antibiotics. Two days later, on or around April 21, 2001, Napier
developed severe stomach pains, began vomiting blood, and was taken
by ambulance to University Hospital in Puerto Rico. He was
admitted with gastrointestinal bleeding, and physicians discovered
that Napier had suffered a perforated duodenal ulcer, which
required two surgeries and a one-month stay at University Hospital.
The physicians also noted in Napier's medical record that Napier
had taken cocaine and heroin on the day prior to his admission to
the hospital.
On December 27, 2002, Napier filed suit against Deesie
seeking damages on three counts: one count pursuant to the Jones
Act, one count of unseaworthiness, and one count for maintenance
and cure.1 Deesie moved for summary judgment, after discovery, on
1
The Jones Act allows seamen to recover for all injuries caused
by their employer's negligence, whether or not that negligence
creates an unseaworthy condition. An unseaworthy condition exists
when a vessel or its appurtenances are not reasonably fit for their
intended purposes, although "reasonably fit" does not require a
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August 2, 2004. Deesie and Napier each filed affidavits from their
respective medical experts to establish whether the fishhook
accident was the cause of the perforated ulcer. Deesie submitted
the affidavit of Dr. Michael D. Apstein ("Dr. Apstein"), a
specialist in gastroenterology and internal medicine. After
reviewing all of the pertinent medical records and historical
background, Dr. Apstein concluded that the perforated ulcer was not
caused by the fishhook because, based on the location of the injury
and the size of the hook, it would have been nearly impossible for
the hook to have reached the duodenum. Rather, Dr. Apstein
suggested that the perforated ulcer was more likely than not caused
by the reported cocaine use.
Napier also submitted an expert medical report, authored
by Dr. Roberto Feliz ("Dr. Feliz"). Dr. Feliz agreed that 'the
fishing hook itself did not directly lead to the duodenal
perforation since it was not long enough to reach the posteriorly
ship to be accident-free. A claim of unseaworthiness compensates
seamen for injuries caused by an unseaworthy condition found on
board a vessel or its appurtenances. However, liability for
unseaworthiness does not require any showing of a defendant's
negligence. The right to maintenance and cure allows seamen to
recover payments for food and lodging ("maintenance") and any
necessary health-care expenses ("cure") while recovering from
injury or illness that occurred while in service of the ship. The
right to recover maintenance and cure is generally without any
regard to fault; however, a seaman may forfeit his entitlement by
engaging in gross misconduct. See Usner v. Luckenback Overseas
Corp., 400 U.S. 494 (1971); Mitchell v. Trawler Racer, Inc., 362
U.S. 539 (1960); Ferrara v. A. & V. Fishing, Inc., 99 F.3d 449 (1st
Cir. 1996).
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located duodenum in the abdomen." Dr. Feliz, however, also
explained several medically accepted factors that can potentially
lead to ulcers, focusing in particular on the effects of
nonsteroidal anti-inflammatory drugs (NSAIDs). He stated that
NSAIDs "such as aspirin, Advil, Naprosyn, Motrin" and steroids such
as prednisone can cause ulcers by disrupting the normal mucosal
defense and repair system, making the mucosa more susceptible to
the attack of gastric acid. Dr. Feliz went on to describe in more
detail the link between Motrin and ulcers in patients with a
history of ulcers. He stated that Napier "appeared to have been
treated" with aspirin and Motrin and concluded that there was a
"causal relationship between the injury sustained with the hook and
the subsequent development of a duodenal ulcer." Additionally, Dr.
Feliz contradicted Dr. Apstein's statement that the use of cocaine
could possibly produce a perforated ulcer within one day of
consumption.
On March 3, 2005, the magistrate judge granted Deesie's
motion for summary judgment as to the Jones Act and unseaworthiness
claims but denied the motion as to the claim for maintenance and
cure. The magistrate judge excluded the testimony of Dr. Feliz for
failure to rest upon an adequate factual foundation. Specifically,
the magistrate judge ruled that there was insufficient factual
evidence to support the claim that Napier had ingested aspirin or
Motrin. In particular, he looked to the phrase "appeared to have
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been treated" in Napier's expert report to demonstrate that the
report was based on conjecture. Moreover, the magistrate judge
found that the record was devoid of any reference to Motrin, and
that the only mention of aspirin was the captain's testimony that
there was aspirin aboard the ship. Without Dr. Feliz's testimony
to establish the fishhook accident as the cause of the ulcer, the
magistrate judge found that Napier had produced no evidence as to
causation and entered partial summary judgment in favor of Deesie.
This was plainly error in light of an admission made by
the defendant. In Deesie's amended motion for summary judgment,
Deesie stated the following: "For the purposes of this motion, we
assume that (a) the plaintiff took aspirin and Motrin at some point
following the hooking incident and (b) the consumption of these
over-the-counter medications caused his injury." The magistrate
judge's ruling was also erroneous because Napier, in a supplemental
affidavit that was filed with his opposition to Deesie's amended
motion for summary judgment, stated that he took aspirin and
Motrin, an allegation that should have been taken as true by the
magistrate judge for purposes of deciding upon the summary judgment
motion. See DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir.
2005) ("In adjudicating a motion for summary judgment, a district
court construes the facts 'in the light most amiable to the
nonmovant[] and indulges all reasonable inferences favorable to
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[him].'" (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st
Cir. 1990)).
On March 17, 2005, Napier moved for reconsideration under
Fed. R. Civ. P. 59(e). As part of the motion for reconsideration,
counsel for Napier submitted an affidavit explaining that Napier
had informed counsel that he took aspirin and that counsel had
relayed that information to Dr. Feliz. Dr. Feliz also presented an
affidavit confirming that Napier's counsel informed him that Napier
had ingested aspirin following the accident. Dr. Feliz further
clarified that the phrase "appeared to have been treated" was
superfluous; his intention was to convey that he was informed prior
to issuing his opinion that the patient had taken aspirin.
Upon consideration of the additional affidavits, the
magistrate judge found that there was sufficient evidence for Dr.
Feliz to base his testimony on the fact that Napier had taken
aspirin. However, the magistrate judge held that although the
medical report submitted by Dr. Feliz attested to the dangers of
Motrin and Motrin taken in combination with aspirin, it did not
support the claim that aspirin alone could cause an ulcer. The
magistrate judge thus found that Napier had not presented
sufficient evidence on the issue of causation to avoid summary
judgment on the Jones Act and unseaworthiness claims. The
magistrate judge also gave two alternative grounds for granting
summary judgment. First, Napier had not shown that anyone on board
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could have known of Napier's history of ulcers. Second, Napier
presented no evidence to suggest that the presence of aspirin could
make a vessel unseaworthy.
II.
A. Standard of Review
In this appeal, Napier is appealing from two orders: 1)
the initial summary judgment order, and 2) the denial of Deesie's
motion for reconsideration (which is really a motion to amend
judgment under Fed. R. Civ. P. 59(e)). We review the grant of
summary judgment de novo. Pagano v. Frank, 983 F.2d 343, 347 (1st
Cir. 1993). We review the denial of a motion to amend judgment for
abuse of discretion. Vasapolli v. Rostoff, 39 F.3d 27, 36 (1st
Cir. 1994).
Regarding our review of the summary judgment decision, we
are authorized to reverse the lower court if, after viewing the
facts and making all inferences in favor of the non-moving party,
the evidence on record is "sufficiently open-ended to permit a
rational fact finder to resolve the [liability] issue in favor of
either side." Coyne, 53 F.3d at 457 (internal citations and
quotation marks omitted). Although this case comes before us under
our maritime jurisdiction, the standard for granting summary
judgment motion in an admiralty case is identical to that applied
in non-admiralty cases. Cerqueira v. Cerqueira, 828 F.2d 863, 864-
65 (1st Cir. 1987).
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Summary judgment is appropriate when one party has failed
to raise a genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-52 (1986). A genuine issue exists
when, based on the evidence, a reasonable jury could resolve the
issue in favor of the non-moving party. Fajardo Shopping Ctr.,
S.E. v. Sun Alliance Ins. Co. of P. R., 167 F.3d 1, 7 (1st Cir.
1999). Further, a fact is material if it has the "potential to
affect the outcome of the suit." Santiago-Ramos v. Centennial P.R.
Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v.
Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). Here, the burden
rests on the moving party, Deesie, to demonstrate that there is "an
absence of evidence to support the nonmoving party's case."
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). As we have
noted, the role of the court at the summary judgment stage is to
"examine[] the entire record 'in the light most flattering to the
nonmovant and indulge all reasonable inferences in that party's
favor.'" Cadle Co. v. Hayes, 116 F.3d 957, 959 (1st Cir. 1997)
(quoting Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581
(1st Cir. 1994)). Throughout this process, the judge must remember
that "[c]redibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge." Anderson, 477 U.S. at 255.
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B. Expert Testimony
We begin with the motion for summary judgment and the
magistrate judge's interpretation of Dr. Feliz's expert testimony.
As we have said, the magistrate judge erred in entering summary
judgment in the first place, given the admission by the defendant
that Napier "took aspirin and Motrin at some point following the
hooking incident" and Napier's own affidavit -- the contents of
which were to be accepted as true for purposes of the summary
judgment motion -- stating that he had ingested those drugs.
We therefore turn to the motion for reconsideration. In
assessing the motion for reconsideration, the magistrate judge
determined that the additional affidavits filed were sufficient to
demonstrate that there was a factual basis for Dr. Feliz to believe
that Napier had taken aspirin. The magistrate judge, however,
found no such basis for believing that Napier had taken Motrin, as
the entire record was devoid of any mention of the drug or
indication that Napier had access to the drug.
This conclusion was also contrary to both the defendant's
admission and Napier's own statement that he had taken Motrin. But
even if the defendant had not made such an admission and Napier had
not made his statement and it was still in doubt that Napier had
taken Motrin, we believe that Dr. Feliz's report supported the
contention that aspirin alone can cause ulcers (which, the
magistrate judge pointed out, was necessary for Napier to survive
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Deesie's summary judgment motion). Even if the magistrate judge
was correct in asserting that Dr. Feliz made several conclusory
statements concerning Motrin and Motrin taken in combination with
aspirin as the specific cause of Napier's ulcer, this does not
negate the evidentiary value of the rest of his affidavit. In
particular, we highlight Dr. Feliz's statement that "NSAID
nonsteroidal anti-inflammatory medications and steroid usage such
as aspirin, Advil, Naprosyn, Motrin and prednisone causes ulcers in
the same mechanism as described above." The unambiguous meaning of
Dr. Feliz's statement is that any of these individual medications
alone is sufficient to cause an ulcer. Therefore, the magistrate
judge erred in finding that Dr. Feliz's report did not support the
claim that aspirin alone could cause an ulcer.
C. Jones Act Claim
The Jones Act provides seamen with a cause of action
against employers when "an employer's failure to exercise
reasonable care causes a subsequent injury even where the
employer's negligence did not render the ship unseaworthy."
Ferrara v. A. & V. Fishing, Inc., 99 F.3d 449, 453 (1st Cir. 1996)
(citing Toucet v. Maritime Overseas Corp., 991 F.2d 5, 10 (1st Cir.
1993)). While Napier must establish all the elements of a common-
law negligence claim, the burden to prove causation under the Jones
Act is "featherweight." Toucet, 991 F.2d at 10 (citations
omitted). Napier need only demonstrate that the vessel's
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"negligence played any part, even the slightest, in producing the
injuries for which the plaintiff seeks damages." Connolly v.
Farrell Lines, Inc., 268 F.2d 653, 655 (1st Cir. 1959) (citing
Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506 (1957)).
The magistrate judge granted summary judgment for this
claim on the ground that Napier had presented no evidence to show
a causal relationship between the fishhook accident and his ulcer.
Taking all factual inferences in favor of Napier, he has shown that
aspirin was available on board the vessel and that he took aspirin
to treat the pain from the fishhook accident. Further, the expert
testimony provided by Napier indicates that aspirin alone can cause
ulcers. For purposes of avoiding summary judgment, Napier has
carried his burden to establish the hooking incident as the cause
of his ulcer.
As an additional ground for denying the Rule 59(e)
motion, the magistrate judge found that even if the captain or
another crew member had given aspirin to Napier, Napier had not
shown that that person knew that Napier had a history of ulcers.
However, the giving of aspirin was not the negligent act. Napier
alleged negligence in the circumstances surrounding the fishhook
accident, which the magistrate judge did not address. Napier's
taking of aspirin is relevant to linking the fishhook accident to
his ulcer. As we described above, we think a jury could find the
requisite causation between the fishhook accident and the ulcer
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even if the ship's captain and crew did not know Napier's medical
history.
D. Unseaworthiness
Unseaworthiness has been defined by the Supreme Court as
a separate cause of action and unique from a claim under the Jones
Act. Ferrara, 99 F.3d at 452 (1st Cir. 1996) (quoting Usner v.
Luckenbach Overseas Corp., 400 U.S. 494, 498 (1971)). The doctrine
of unseaworthiness places an absolute duty upon shipowners to
furnish a "seaworthy" ship and compensate seamen for injuries
caused by any defect in a vessel or its appurtenant appliances or
equipment. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 548-49
(1960); Hubbard v. Faros Fisheries, Inc., 626 F.2d 196, 199 (1st
Cir. 1980). A shipowner is not bound to provide an accident-free
ship, but rather the duty is "to furnish a vessel and appurtenances
reasonably fit for their intended use." Mitchell, 362 U.S. at 550.
That duty extends to all situations aboard the ship, whether
transient or permanent, developing before the ship leaves its home
port or at sea. Id. at 549-50. The absolute duty is such that
even a temporary and unforeseeable malfunction or failure of a
piece of equipment is sufficient to establish an unseaworthy
condition. Ferrara, 99 F.3d at 453 (quoting Hubbard, 626 F.2d at
199).
Liability based upon a claim of unseaworthiness does not
require a showing of negligence, but instead imposes a strict
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liability regime upon shipowners. "The reason, of course, is that
unseaworthiness is a condition, and how that condition came into
being -- whether by negligence or otherwise -- is quite irrelevant
to the owner's liability for personal injuries resulting from it."
Usner, 400 U.S. at 498. For liability to exist, a plaintiff must
first establish the existence of an unseaworthy condition on board
the vessel and then demonstrate the unseaworthy condition to be the
proximate cause of his injury. Ferrara, 99 F.3d at 453. Proximate
cause requires that the unseaworthy condition is the "cause which
in the natural and continuous sequence, unbroken by any efficient
intervening cause, produces the results complained of, and without
which it would not have occurred." Brophy v. Lavigne, 801 F.2d
521, 524 (1st Cir. 1986).
The doctrines of proximate cause and superseding cause
are applicable in admiralty law. See Exxon, Co., U.S.A. v. Sofec,
Inc., 517 U.S. 830, 832 (1996). Napier must demonstrate that
Deesie's negligence in allowing the fishhook accident is the
proximate cause of the injury in order to recover.2 In order for
the negligent act to constitute proximate cause, the act or
omission must be a substantial factor in bringing about harm and
the injury incurred must have been a reasonably foreseeable
2
Because negligence claims are generally based upon state law,
"courts sitting in admiralty may draw guidance from . . . the
extensive body of state law applying proximate causation
requirements and from treaties and other scholarly sources."
Exxon, 517 U.S. at 839.
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consequence. See Veilleux v. Nat'l Broad. Co., 206 F.3d 92, 123-24
(1st Cir. 2000). A determination of proximate cause focuses
primarily on foreseeability and exists when a "prudent person
reasonably could anticipate" the resulting injury. Malavé-Félix v.
Volvo Car Corp., 946 F.2d 967, 971 (1st Cir. 1991) (citing Marshall
v. Pérez-Arzuaga, 828 F.2d 845, 847 (1st Cir. 1987)). However,
Deesie can escape liability in the face of proximate causation by
proving the existence of an unforeseeable intervening cause.
Grajales-Romero v. Am. Airlines, Inc., 194 F.3d 288, 296 (1st Cir.
1999). An intervening cause is a new and independent cause of the
harm which is neither anticipated nor reasonably foreseeable by the
defendant: it must operate independently of and occur after the
conclusion of the defendant's negligent conduct. Malavé-Félix, 946
F.2d at 972; Marshall, 828 F.2d at 848.
The magistrate judge granted summary judgment for this
claim on the ground that Napier had presented no evidence to show
a causal relationship between the unseaworthiness of the vessel and
his ulcer. For the reasons discussed above, Napier has presented
sufficient evidence of a causal connection between the fishhook
accident and his ulcer to avoid summary judgment.
Deesie, however, argues that it cannot be held liable
because the aspirin treatment constitutes an intervening cause as
a matter of law. Deesie argues that Napier's ulcer was not a
foreseeable result of providing aspirin on board the ship and that
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Napier's decision to take aspirin despite his history of ulcers was
an independent cause of the harm. We think this is properly an
issue for the jury. A reasonable jury may well conclude that
Napier took matters into his own hands by ingesting a medicine
contraindicative for persons with a history of ulcers. However,
that same jury could find adverse consequences from medical
treatment to be a foreseeable risk arising from a hooking incident
at sea. The issues of foreseeablility and superseding cause are
properly for the jury to decide when there may be reasonable
differences in opinion. Springer v. Seaman, 821 F.2d 871, 876 (1st
Cir. 1987); see also Swift v. United States, 866 F.2d 507, 510 (1st
Cir. 1989) ("Application of the legal cause standard to the
circumstances of a particular case is a function ordinarily
performed by, and peculiarly within the competence of, the
factfinder."); Putnam Res. v. Pateman, 958 F.2d 448, 460 (1st Cir.
1992) ("When, as here, the existence of proximate cause turns on an
issue of superseding causation . . . the jury's role may be
especially significant.").
As an additional ground for denying the Rule 59(e)
motion, the magistrate judge found that Napier had presented no
evidence showing that the presence of aspirin aboard the F/V DEESIE
rendered the vessel unseaworthy. However, Napier alleged that the
vessel was unseaworthy because of the circumstances surrounding the
accident in which a fishhook became embedded in his abdomen.
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Because the magistrate judge did not address the unseaworthiness
alleged by Napier, summary judgment is not appropriate on this
alternative ground.
III.
For the reasons given above, we reverse the grant of
summary judgment on the Jones Act and unseaworthiness claims and
remand the case for proceedings consistent with this opinion.
Reversed and Remanded.
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